Part II: Prof. Jennifer Roback Morse on Why Privatizing Marriage is Impossible


Today on Public Discourse, Jennifer Roback Morse explains how getting the state out of the marriage business will result in a larger, more-intrusive government. This is the second in a three-part series from Morse on privatizing marriage:

Libertarians are being taken in by rhetoric that sounds libertarian but, in fact, will lead to a dramatic shift in the balance of power between the state and civil society, indeed between the state and the natural order itself.

In my previous article, I showed why it is impossible to get the state out of the marriage business. Marriage attaches mothers and fathers to their children and to one another. This is an irreducibly public function. Yet attempting to do the impossible is not harmless. Assigning the state an impossible task amounts to giving it a blank check.

That is because the attempt to privatize marriage will hinder the ability of marriage to perform its essential public function. Nonetheless, children still need to be attached to mothers and fathers somehow. The state will pretend to get out of the marriage business all right, but then the state inevitably will be caught up in the business of defining who counts as a parent. Up until now, that job has been largely left to Mother Nature, with the state simply recording the natural reality of parenthood.

You can see this process at work by looking at disputes between same-sex partners over child custody. These kinds of disputes are already redefining parenthood. Some of the cases involve various kinds of civil unions. Some of these cases involve agreements between the would-be parents. The difficulties these cases present illustrate how problematic it really is to attempt to “privatize marriage.”